The two say a study is needed to head off "likely 11th hour litigation" aimed at stopping the three-year pilot program from taking effect, a possibility Streetsblog alluded to following the first meeting of the Traffic Congestion Mitigation Commission late last month.

"[D]ecision-makers need to know that the selection of the system to be tested has considered all reasonable alternatives to achieve the Mayor’s admirable goals," reads a press release announcing Konheim and Ketcham’s open letter to Mayor Bloomberg.

The most promising alternative to be examined in an environmental assessment is "charging at the real chokepoints in roadway capacity — our river crossings and highways," according to Ketcham, a traffic engineer who has regarded bridge tolls as the premier congestion pricing strategy since he introduced them in his landmark Clean Air plan for New York City in 1973. Tolling the four free East River bridges equal to all MTA crossings and across 60th Street, river to river, he calculates "would be at least as effective as PlaNYC in reducing congestion and would generate far more funding for transit."

The independent Brooklyn-based planners estimate that a pricing cordon that crosses bridge and tunnel spans and 60th Street would require E-ZPass monitors on about 50 inbound lanes, whereas the charging network necessitated by PlaNYC’s complex avoidance of tolls could require detectors and cameras on1,000 to 2,000 lanes. Based on London’s operating costs for a simpler single cordon, they foresee that the charging grid in PlaNYC would consume most of the congestion pricing revenue, leaving little funding for transit — a major goal of the mayor’s plan and the long-term aim of transit advocates.

Mr. Ketcham and Ms. Konheim suggest numerous strategies as alternatives to or companions of congestion pricing, particularly, the kind of comprehensive parking control and parking pricing program instituted in London before road pricing, and measures to reduce taxi cruising, a "major source of New York’s congestion."

The full text of the letter appears after the jump.

Hon. Michael Bloomberg

Mayor

City Hall

New York, NY 10007

Re: Congestion Pricing Pilot Test Must Undergo Environmental Review

As long time advocates of congestion pricing in New York City, we fear that your entire plan could be in self-imposed jeopardy. Some of your PlaNYC team wrongly assert that compliance with the State Environmental Quality Review Act need not occur until after the three-year pilot test. It is a mistake to dismiss this clear legal mandate as a delaying tactic of opponents of congestion pricing. Their call for an EIS now is a sure signal that they will see you in court if you have not taken some defensible action to comply with SEQRA, described further in the enclosure. The SEQR process may be inconvenient and is certainly imperfect, but it is mandatory in New York State for all discretionary actions of government that have the potential for causing a significant impact — as, indeed, is your intent. The virtue of your program’s goals does not exempt compliance with the SEQR process. Nor does virtue protect your proposal from 11th hour litigation that could de-rail implementation on the grounds of failing to identify unintended consequences or not adequately evaluating alternatives that further PlaNYC goals.

Your team cannot argue both ways. On one hand, they are saying that the data already collected are adequate to meet the purpose of SEQRA, which is to enable government agencies to make informed decisions. At the same time, they are saying that any SEQR review requires collecting data during the 3-year pilot because the regional model is an imperfect tool for predicting local impacts. If so, they cannot then cite the model to assure communities outside the pricing zone that they would not be adversely affected by commuter parking or over-crowded trains.

Most of all, decision makers need to know that the selection of the system to be tested has considered all reasonable alternatives to achieve your admirable goals: reducing congestion and global warming emissions; generating funds to improve transit; maintaining the city’s global economic leadership; and promoting community quality of life and air quality. Thus, the most promising cost-effective alternative must, by definition, be identified in advance of the pilot test.

It is also specious for your team to claim SEQR exemption on the grounds that the Action is reversible and is "not like having to tear down a building." Overhead gantries at hundreds of charging locations would, in fact, be major construction. Last week, the MTA reported that the half-billion dollar cost of transit services to support the pilot period would cause a major reordering of its adopted capital program. The 3-year test will extract well over a billion dollars from the region’s motorists. A 3 year change of travel patterns will have long-term effects — for good or ill — on the business climate, people’s lifestyles and investments across the region. In no way can it be argued that a full scale 3-year "trial" qualifies for the SEQR exemption allowed for feasibility, engineering and planning studies and other purely paper exercises.

Your compelling case for road pricing finally permits rational assessment of closing New York’s free bridge loophole, especially in combination with a single charging cordon across Manhattan. Charging at the chokepoints in roadway capacity — our river crossings and highways — could be at least as effective as PlaNYC in reducing congestion and would generate far more funding for transit, a major goal. Based on London’s costs for operating a ring of street charging monitors, it is evident that administering the more complex charging network in PlaNYC of monitors on 1,000-2000 lanes would consume most of the revenue, leaving little for transit. When your advisors seized on London’s street cordon charging system as a way for New York to avoid the historical political stigma of bridge tolls, we think they had no idea of the power of the campaign you would mobilize. Nor did they gauge the latent anti-traffic fervor across the city that now seeks the local traffic relief of bridge tolls, the premier "congestion pricing" strategy in NYC for three decades.

Most promising, but rarely discussed, is the reduction of congestion far beyond the pricing zone that will likely result from reducing trips to the city center and eliminating the distortions of travel due to toll differentials. Our modeling in 2003 shows that tolling the four free East River bridges at the same rate as the MTA crossings would cut more than 9% of the time citywide that motorists, truckers and bus riders now waste stuck in traffic. Most of the travel time savings would be in Brooklyn and Queens where drivers would no longer clog routes to the free bridges. The ripple effect of faster travel would benefit motorists not even using the bridges — and communities everywhere. Not only would this exceed your goal of 7% less congestion delay in Manhattan, but it could be accomplished virtually overnight with about 25 overhead E-ZPass scanners on the four free East River bridges. Adding another 28 charging points across 60th Street, river to river, would capture the other half of the traffic that now escapes tolls and it would achieve the political equity missing in past tolling proposals. Instituting London-style annual fees for residential parking permits and strict limits for parking in the pricing zone could provide an equitable revenue trade off for eliminating fees for Intra-zonal trips and the costly collection grid.

Our 1995 Four World Cities Study, a milestone comparison of transport in the global financial capitals, revealed strong similarities between London and New York. But important differences must be accounted for in predicting the effects of congestion pricing. In New York, the tolls at most entrances will be deducted from the new charge, lowering its differential impact. Manhattan highways fall far short of London’s ring road bypasses with their capacity improvements that smoothed the absorption of traffic diverted from the congestion zone. New York lacks London’s comprehensive parking pricing program that prevents long term parking almost everywhere. New York has none of London’s initiatives to curtail taxi cruising and erratic maneuvers which are a major cause of congestion. And New York has not created the pervasive pedestrian streetscape, which London First Deputy Mayor Nicky Gavron cites as the real objective of congestion pricing. When you are next in London, get the lowdown on reliance on high-tech charging systems from Deputy Mayor Gavron. Last May at NYU, she confided: If London had New York’s bridges and tunnels, it would never have created a street cordon. Why would New York propose multiple cordons-London has enough trouble with one. You’ve got parking all wrong in New York. Parking pricing should come first or, at least, as a companion to road pricing

Your PlaNYC team cannot continue to validate their public assurances by referring to London without these caveats and without making the PlaNYC model completely transparent, reporting all its underlying data and assumptions. To maintain the momentum of your potential congestion breakthrough, the City should now be preparing at least an EAS to preempt 11th hour litigation. This necessitates gathering and openly analyzing the extensive baseline data, as preceded London’s test program. A forthright SEQR/CEQR process will build confidence in the selected outcome by enabling public scrutiny of the analysis of alternatives and their consequences. A full accounting of the societal costs of vehicle travel would also show that the economic benefits of comprehensive congestion reduction are even greater than have been reported to you to date. With a vested interest in your success that goes back 30 years when we first introduced the pricing concept, we stand ready to help you and your team assess what works best for New York.

At least from a naive point of view, there’s some sense to this alternative idea. By virtue of being an island, Manhattan has natural choke points in the form of its bridges and tunnels. It seems to me that charging an $8 toll at every inbound bridge could have the same effect on congestion at a much lower infrastucture cost. In effect, it would be a pricing zone on all of Manhattan.

Perhaps there are subtleties related to midtown vs. upper manhattan that I’m not seeing (not being from around the area).

The long-worked awaited, community-based Bike Plan for San Francisco is currently on hold due to exactly the kind of lawsuit Konheim & Ketcham warn about. The delay has been heartbreaking for everyone who worked so hard on the issue for years.

OF COURSE this whole thing not only requires an EIS, but would benefit from an EIS. The Mayor BS’d us when he said that the USDOT would only come up with the money if we had a plan by 7/16 (or whatever date that was). And he’s BS’ing us if he says that there couldn’t possibly be a better alternative than what he’s proposed.

“It is a mistake to dismiss this clear legal mandate as a delaying tactic of opponents of congestion pricing.”

A truer statement could not be spoken. Credit the mayor with starting the debate. But let’s not be bullied or rushed into something that even some of the greatest advocates concede “would consume most of the congestion pricing revenue, leaving little funding for transit…”

BTW, I love the part about taxi controls. The taxi strike of last month and a few years ago was a real eye-opener. Ban cruising for fares and relegate taxis to assigned taxi stands when they’re not in use.

If you’re in City Hall, this isn’t the photograph you’d want to use to highlight congestion in the Manhattan CBD. There are more vehicles exempt from congestion charging visible (yellow taxis and buses) than vehicles that are required to pay the congestion charge.

If you produce an EIS, it will be litigated on the grounds that the EIS is inadequate and tied up in court for years. Any EIS will rely on assumptions, and these will be litigated, with the goal not of winning the point but rather getting an injunction and stalling as long as possible. That is the way it is done. Ask Richard Lipsky, who knows how it is done.

Meanwhile, your “reasonable worst case” analysis will find that if you do absolutely anything all life on earth will be extinguished. Every EIS exaggerates everything.

The Bloomberg approach is the right one. Congestion pricing should not require an EIS because it will be temporary. And the results of the experiment can be used to produce an EIS with REAL FACTS.

Of course, if Konheim and Ketcham are willing to do an EIS pro-bono, they can get started and whip it out if a judge finds that one is required.

How did we get all of this traffic clogging up our streets in the first place? Whose project was that? Was an EIS done to allow it to move forward? I’d like to call for an EIS on leaving things as is. What is the environmental impact on doing nothing. Let’s run a years-long process on that.

I think Konheim & Ketchem are right on the merits: there should be an environmental assessment of proposed traffic control measures. It’s the right thing to do. Done correctly, an EIS would help decision makers (and citizens) pick an appropriate mix of traffic control strategies. Would the adequacy of the EIS be litigated? Of course.

That said, Larry Littlefield makes a strong tactical argument: Mr. Bloomberg’s naked claim that this is an “experiment” might succeed in court — but it shouldn’t. Spending hundreds of millions of dollars on transit improvements, cameras and software and collecting a substantial revenue stream (to which politicians could easily become addicted) are not “experiments.” Judges might might well conclude that the experimental fig leaf does not cover this project.

The environmental assessment process may be a pain but scuttling it will hurt us more in the medium term.

Very well. Two years to complete it. One year for ULURP. Three or four years of litigation.

Might as well not bother.

And someone said it right — there is no EIS required for existing conditions.

If they do this, an EIS could be required for a bicycle lane, with each one costing hundreds of thousands of dollars to prepare, plus litigation costs. You heard me right.

What is the impact of that bicycle lane on 9th Avenue on taxis? Might more pedestrians be injured if bikes are drawn there? How about the economic impact on stores of more difficult delivieries? Might a bike lane cause the displacement of less affluent people from Chelsea, because it will attract affluent people to the neighborhood?

For $500,000 Konheim and Ketchum will provide a legally defensible answer in several volumes. Their testimony in court in the subsequent lawsuit is additional. And, to be legally defensible, they will assume the “reasonable worst case.”

Have any of you every written (sections of an) EIS? Have any of you ever had to write defenses of one in court? WELL I HAVE AND I KNOW WHAT IS GOING ON!

I’m all for congestion pricing (though I prefer the East River Bridge version because I am very uncomfortable with cameras *everywhere*, especially if that proto-fascist Kelly becomes mayor).

But I have to wonder — why did Bloomberg wait so long to introduce this plan? He could have done it right in the first term, with a much better and longer public outreach campaign, stronger arguments and maybe time for an EIS and any legal challenges. But now we’re left defending a great idea supported by a strategy that is less than ideal.

Every project or policy is an experiment – but not all of them are easily reversible or temporary. This one involves massive hardware and infrastructure installation as far as I can tell (although no visual depictions have been provided). There will be a cost to ripping it out and restoring the streets. It is also not a pilot project, which would involve some small area that could be reasonably restored if the pilot were assessed to be inadequate. The major benefit of an EIS is the opportunity to compare alternatives. People who were on the group that put forth this plan have said (privately) that their goal was to “get it on the table” with the full understanding that it could be modified. Well it’s on the table. Now let’s examine it with a very bright light and build consensus for the best choice in the longterm interests of the whole city.

One more note. Either this proposal is exempted from CEQR, or it dies from a multi-year delay.

Guess what — the state legislature has the power to amend the law and exempt congestion pricing, or at least at three-year test of congestion pricing, from SEQR. And whenever it wants something big to happen — the repair of NYC schools, new schools, LIE upgrades on Long Island — it usually does.

Failure to exempt is tanamount to a no. We might get congestion pricing, or we might get a no. But we will not get both an EIS and congestion pricing in the new five years.

How could there be a neg dec under SEQRA for something like this? As Hilary rightfully pointed out, you’re talking about hundreds of millions of dollars in infrastructure construction combined with the intentional manipulation of traffic patterns throughout the City.

And it’s all in the name of altering THE ENVIRONMENT! Isn’t that exactly the kind of thing that SEQRA was created for? If not an EIS for something like this then what would you ever do an EIS for? Who knows what potential effects might be identified in an EIS — anyone scared to find out?

And don’t buy for a minute that this is really just a three-year program that could go un-renewed, after all that money to implement it. Forget it — the only thing that would change is that the fee would go up, just as it does for everything in NYC every 1-2 years.

The good thing about having the EIS process kill something like this by holding it up for five years (2 years research, all of which will be bogus because it depends on the assumptions used, 1 year review, two years litigation) is that environmentalists will see the proces for what it is and turn against it.

How valuable will it be? One of the requirements, to be legally defensible, is a “description of the affected area” for land use. That’s right, without a detailed description of the entire area affected, not overall but each and every bit of it, the EIS is legally invalid. And what is the affected area? Arguable, the New York Metropolitan Area.

Fools think I’m making this up? I once spent weeks working overtime to prepare hundreds of tables and write hundreds of pages of text to produce a multi-volume description of the land use of New York City, for a zoning proposal that was later withdrawn! Knowing it was completely worthless and would never be read! And they aren’t going to let that document be reused either.

Let’s just say given what I got paid and the rate at which I work compared with just about anyone else I have ever met, something tells me such a document from Konheim and Ketchum will be a wee bit more expensive.

Ah, but at least that doesn’t require field work. How about an interection analysis of every intersection both inside and within five miles of the CP border? How can the effect of the proposal be imagined (word used intentionally) without it?

It’s s–t like this that drove me out of city planning (is that all it is? yes!) and the public sector once and for all. I’m in a low aggravation job now, but just hearing about it drives me nuts years later.

By the way Hilary, what I was referring to was NOT a negative declaration. A negative declaration is the outcome of a preliminary CEQR/SEQR review, which holds that a full EIS is not required.

I’m talking about changing the statue to simply exempt something from the entire process. It has been done multiple times.

Everyone who has ever participated knows what the whole EIS thing amounts to. If the EIS from Konheim and Ketchum would by 10,000 pages, the EIS from AKRF would be double that.

The city could simply game the assumptions to get a “neg dec” or “no impact” after wasting volumes of paper and perhaps years of time. And the opponents could sue and tie the thing up even in the assumptions are valid.

Larry, I think Brian and Carolyn should be applauded for bringing this to the fore while there is plenty of time to get it out of the way. It’s not as if pricing opponents weren’t well aware of the issue. Anyway, it’s implied in their letter that Brian and Carolyn are probably with you in hoping for a SEQRA exemption as part of a congestion pricing deal.

Incidentally, in another example of enviro review absurdity writ small, just yesterday, Bloomberg started work on the Hudson Greenway connector between 83rd and 91st st. That project was delayed by at least five years by absurd environmental analysis demanded by the State DEC, including a complicated computer modeled “shadow study.” Working on that project opened my eyes to some of the well intentioned, but still ridiculous enviro regs that businesses and govt agencies have to contend with.

(Working on that project opened my eyes to some of the well intentioned, but still ridiculous enviro regs that businesses and govt agencies have to contend with.)

People get ahold of well intentioned rules and make them ridiculous, then organize to fight their repeal to make money. EIS consultants, led by AKRF, have fought to get more and more stuff thrown into the EIS. If one client lets it in, they can tell the next that they’ll testify the EIS is inadequate if it isn’t included. So the thing expands.

There was some success in beating it back, but mostly through the expansion of what qualifies for a negative declaration. Once you are in the EIS process, it’s still absurd.

Business has a right to complain. But this is something politics has done to us, and politics is the boss of government, so what can they say?

We’ve been traveling for two days and are just catching up with reaction to our impact study bomb. I’m glad most people understand that complying with SEQRCEQR now will head off delay when it really hurts–a restraining order on implementation. What was, perhaps, not emphasized enough in our letter is the principal advantage to an impact assessment is the spelling out of the data and assumptions underling each case. For example, it is essential to understand just who are makng the intra-zonal trips and their travel patterns that are the driving force behind the otherwise unnecessary elaborate trip tracking system.

It may not also come through that traffic entering Manhattan north of the pricing zone would be captured by the river to river cross
Manhattan cordon.

If our website wasn’t a victim of endless repair, you could read the 5 page backup, which makes the case that the need for a CEQR determination is irrefutable but that it may be able to be done via an Environmental Assessment Statement (an EAS)that examines only the key issues at a level of of detail equivalent to that in an EIS. In past years, Konheim & Ketcham, prepared EASs for the nation’s, three largest hospital construction projects, which were largely traffic and parking studies, two in six months and one in under a year. (K&K is not taking on new business.) The main difference is that an EAS is not subject to public scrutiny of an EIS to attempt to keep it honest. However, because the community was involved in the three projects cited, beginning with an extensive alternative site analysis, they had confidence in the data, the assumptions and the results. In this case, Community Consulting Services would provide that technical oversight pro bono. as we do on so many other impact assessments, provide thr City makes the data available and embarks on collecting more adequate data–as London has done. More to come.

Will your EAS include a “reasonable worst case” analysis of the parking impact of the MetroNorth Station in Poukeepsie if the maximium imaginable number of Dutchess County residents switch to the train?

Remember, the analysis won’t be valid if the impact would be what in fact would be a congesion pricing pilot were implemented, because the worst case probably isn’t what would occur.

And since Dutchess County is part of the affected area, how much will be charged to describe the land use of the affected area, present, future without the action, and reasonable worse case?

You know, maybe I should just surrender, get with the program, stop thinking about right and wrong, fair or unfair for everyone, and just start selling my services to either side to make a few bucks.

Hey Bloomberg, if you don’t hire me to do an analysis with your assumptions, the other side can hire me to do an analysis with their assumptions. And if I hang onto that AICP certifcation, I can always make a few bucks by providing client-friendly testimony in court.

Larry – Who are you and what’s your beef? If you knew us and read what wee said we are proposing a streamlined way for the City to comply with the law, providing the data, assumptions and analysis are transparent and reasonable. We do not propose to prepare the EAS but to donate our technical services to see that it is accurate and adequate. not the current article of faith based on fragments of data and a reliance on Lon London as a model. If you send me your email, cskcommunityconsultin.org, I will semd you our back up paper to show why this is not enough.

My beef is based on my experience with the process. You can take two years and do an analysis that is “transparent and reasonable.” And someone else can come up with another version of what is “transparent and reasonable.” And this can be litigated in court. If an injunction is issued until the case is resolved, years will pass, and it’s over. The substance of the argument doesn’t matter, just the ability to impose a delay. And that delay can be imposed with or without an EAS, EIS, neg. dec, whatever, because any analysis can be challenged as inadequate. It’s like a sport for some.

I was on the other side of these things, at DCP, for years, and helped to prepare them for Departmental actions. The whole thing was hijacked within minutes after it was enacted, and there is a whole land use/environmental bar just looking to earn fees on the suits. The only question is whether or not someone is willing to pay.

Sure an analysis should be done. But the SEQR process is poisoned, and anything good for the environment should be exempted. After the pilot is up and running, there will be real information to analyze. No set of assumptions you can come up with would be as accurate. (And no analysis could be all encompassing enough that it could not be litigated as insufficient.) Try it, and it if doesn’t work, get rid of it and try something else.

How could the analysis be challenged in court? I can come up with a million ways, you perhaps more. For example, might the imposition of the fee cause some businesses to relocate corporate campuses on the exurban fringe? And would people then also move to that fringe to be closer to the job opportunities? What effect will that have on open space and water quality? Got that in your scope? Defend it in court.

Meanwhile, what is those significant change in transport in the area in the past 20 years? EZ-Pass. Before EZ-Pass, the bridges and tunnels were the bottleneck. In recessions, the modal split for auto (NYMTC Hub Bound) would go up, as people abandoned the transit system and took advantage of the additional capacity to drive. In an expansion, the traffic would back up at the bridges and tunnels until people couldn’t stand it anymore, and the transit share would rise. Post-EZ Pass, more people can get through the bridges and tunnels at peak (in NY, with free bridges, that’s the only time they are used), so the choke point has shifted to the streets.

The key is that climate change is real, that feedback systems are ready to kick in to accelerate the process — they already have — and if our leaders and people are not ready to act on this emergency situation, Iraq and the World Wars will seem as pin pricks in future millenia of dire hardship.

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